Citation Nr: 1603656 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-32 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for a right nephrectomy due to trauma (kidney disorder), in excess of 30 percent prior to June 23, 2010, and in excess of 60 percent on and after June 23, 2010. 2. Entitlement to an evaluation in excess of 10 percent for residuals of a head concussion (TBI). 3. Entitlement to an evaluation in excess of 30 percent for migraines associated with residuals of a head concussion. 4. Entitlement to a total disability based upon individual unemployability due to service-connected injuries (TDIU). 5. Entitlement to a compensable evaluation for a nephrectomy scar. 6. Entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee. 7. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status. REPRESENTATION Veteran represented by: Matthew Hill, Attorney ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1964 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008, October 2009, and January 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his November 2012 and February 2015 substantive appeals, the Veteran requested a Board hearing by videoconference. In a September r2015 letter, the RO notified the Veteran that a hearing was scheduled for October 2015. The Veteran failed to appear for this hearing. The Veteran's representative submitted a letter withdrawing the Veteran's hearing request. Accordingly, the Board will proceed to a decision on this appeal. See 38 C.F.R. § 20.704(d) (2015). During the pendency of the appeal, in a June 2012 rating decision, the RO increased the evaluation for the Veteran's service-connected kidney disability from 30 percent to 60 percent, effective from June 23, 2010. However, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. This appeal was processed using Virtual VA and the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for a vascular disorder, hypertension, and stroke are raised by the evidence of record, including VA examinations dated in October 2011 and the Veteran's representative's arguments in an October 2015 appellate brief. The representative contends that because such examinations were discussed in a September 2012 SOC, which the Veteran appealed, the issues are within the Board's jurisdiction and are on appeal. The representative also contends that a stroke disorder, as secondary to a kidney disorder, and/or TBI, was implicitly raised as a part of the Veteran's previously filed kidney and head injury claims. The Board disagrees. The Veteran's kidney and TBI claims were filed prior to the occurrence of the Veteran's stroke in 2011. The claims were not amended thereafter until the October 2015 letter. Further, although the RO did followed up upon the October 2011 VA examiner's statement with additional VA examinations for the issues of vascular disease, hypertension, and stroke, a rating decision was never issued on these issues. As such, the Veteran's substantive appeals could not have addressed the issues and there is no appeal over which the Board can obtain jurisdiction. See 38 C.F.R. § 20.200 (2015). The Board does not have jurisdiction of these issues, however, referral to the Agency of Original Jurisdiction (AOJ) is required. The issues of entitlement to increased evaluations for a kidney disorder, TBI, and migraine, entitlement to TDIU, and entitlement to special monthly compensation (SMC), are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In an October 2015 letter, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated that the Veteran wished to withdraw his appeals for entitlement to an increased evaluation for chondromalacia of the right knee and for entitlement to a compensable evaluation for a nephrectomy scar. CONCLUSION OF LAW The criteria for withdrawal have been met, and the issues of entitlement to an increased evaluation for chondromalacia of the right knee and entitlement to a compensable evaluation for a nephrectomy scar, are dismissed. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In an October 2015 letter, the Veteran's representative withdrew the appeal for entitlement to an increased evaluation for chondromalacia of the right knee and a nephrectomy scar. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed. ORDER The appeal for the issue of entitlement to an increased evaluation for chondromalacia of the right knee is dismissed. The appeal for the issue of entitlement to a compensable evaluation for a nephrectomy scar is dismissed. REMAND The Board finds that a remand is required in this case for further development. First, the Board finds that the Veteran's claims file does not contain complete, current medical records. In that regard, the Board notes that the February 2015 statement of the case (SOC) states that the RO reviewed VA medical records dated November 2009 through January 2015; however, the Veteran's claims file does not contain VA medical records beyond December 2012. Additionally, the claims file also shows that the Veteran underwent vocational rehabilitation through VA. As such, the AOJ should obtain all outstanding VA and vocational rehabilitation records and associate them with the claims file. Any and all private medical treatment records should also be obtained and associated with the claims file, to include any medical records from Dr. DJ and Dr. MS. Review of the file also shows that the Veteran must be afforded VA examinations in connection with his claims. The Veteran was last afforded VA examinations in August 2009 in connection with his kidney disorder and migraine claims, and in October 2011 in connection with his TBI claim. The Veteran has contended that his disorders have worsened since his VA examinations. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, the Board finds that additional VA examinations are needed to ascertain the current severity and manifestations of the Veteran's service-connected kidney disorder, TBI, and migraine disorder. Finally, the issue of TDIU and SMC are potentially affected by the issues on appeal and the issues being referred herein. Issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the issues being remanded and referred are necessary before the Board may provide a decision regarding the Veteran's TDIU and SMC claims on appeal. Further, the Board finds that the Veteran has not been afforded a VA social and industrial survey in connection with his TDIU claim, which would consider the cumulative impact of the Veteran's service-connected disorders on his ability to work. The Veteran should be afforded a VA social and industrial survey in order to ascertain the overall impact of his service-connected disabilities on his ability to work, both singularly and cumulatively, to include the impact of any of the medications he is taking due to service-connected disorders. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including VA medical records dated on and after December 1, 2012. Also obtain the Veteran's Vocational Rehabilitation file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include records from Dr. DJ and Dr. MS. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the paper or electronic file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the severity and manifestation of the Veteran's right nephrectomy due to trauma. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner must provide accurate and fully descriptive assessments of all kidney/nephrectomy symptoms, to include albuminuria, edema, definite decrease in kidney function or other organ systems, hypertension, BUN levels, creatinine levels, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, and/or the requirement of dialysis. The appropriate Disability Benefits Questionnaire must be utilized. 4. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the severity and manifestation of the Veteran's TBI. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner must provide accurate and fully descriptive assessments of all service-connected head concussion residual symptoms, to include cognitive, emotional/behavioral, and physical functioning. The appropriate Disability Benefits Questionnaire must be utilized. 5. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the severity and manifestation of the Veteran's migraine headaches. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner must provide accurate and fully descriptive assessments of all service-connected migraine symptoms, to include the frequency of prostrating attacks and whether such attacks are productive of severe economic inadaptability. The appropriate Disability Benefits Questionnaire must be utilized. 6. After the above development has been completed, obtain a social and industrial survey to ascertain the Veteran's employment functioning. The claims file must be made available to the examiner. Review of such must be noted. The report from this survey must include comments on the Veteran's day to day functioning and the degree of social and industrial impairment which the Veteran experiences as a result of his service-connected disabilities. Information must be sought from prior or recent employers regarding any work impairments and reasons for any cessation of work or quitting or firing. . The clinician should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. The ultimate purpose of the VA social and industrial survey is to ascertain the impact of the Veteran's service-connected disabilities on his ability to work. The surveyor is not limited to the foregoing instructions, but the individual conducting the survey may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The examiner must review and comment on the following: Social Security Administration records; VA examinations; VA medical records; private medical records; and lay statements. 7. After any additional records are associated with the claims file, provide the Veteran a VA examination to determine his entitlement to SMC based on the need for aid and attendance or by reason of being housebound. Any studies, tests, and evaluations deemed necessary by the examiner must be performed. The claims file must be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether the Veteran is permanently bedridden, has such significant disabilities as to be in need of regular aid and attendance, or is permanently housebound by reason of service-connected disabilities alone. The Veteran is currently service-connected for a kidney disorder, migraines, a nephrectomy scar, right knee chondromalacia, right knee instability, and TBI residuals. 8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 9. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs